JUDGMENT 1. - This criminal misc. petition under section 482 Cr.P.C. has been filed by the petitioner against the order dated 16.06.2014 passed by Additional Chief Metropolitan Magistrate No.4, Jodhpur Metropolitan (for short 'the trial court' hereinafter) on an application preferred by the petitioner under sub-section (2) of section 167 Criminal Procedure Code. 2. Brief facts of the case are that the petitioner was arrested by the police on 18.01.2014 in connection with a case registered against him for the offences punishable under sections 420, 409, 467, 468, 471 and 120-B IPC read with section 66 of the I.T.Act. When the investigating agency failed to submit charge-sheet against the petitioner within the time prescribed, the petitioner moved an application under sub-section (2) of section 167 Cr.P.C. and prayed that he may be released on bail. The said application filed by the petitioner was rejected by the trial court while observing that the High Court vide order dated 07.12.2014 has already ordered for releasing the petitioner on bail on an application preferred on his behalf under section 439 Cr.P.C. and the petitioner cannot be ordered to be released on bail while exercising powers under sub-section (2) of section 167 Cr.P.C. 3. Learned counsel for the petitioner has assailed the validity of the order dated 16.06.2014 while arguing that grant of application for bail by the High Court while exercising powers under section 439 Cr.P.C. is quite different from releasing the petitioner in terms of the statutory provisions under sub-section (2) of section 167 Cr.P.C. It is further contended that provisions of sub3 section (2) of section 167 Cr.P.C. are mandatory in nature and when a case is made out for releasing an accused on bail by invoking the said provisions, then he/she is liable to be released irrespective of the order passed by the High Court or Sessions Court under section 439 Cr.P.C. 4. The learned counsel for the petitioner has placed reliance on a decision of Delhi High Court in Ram Singh Batra v. State, 2005 2 Crimes 268 . 5. Learned Public Prosecutor has opposed the criminal misc. petition and argued that there is no illegality in the impugned order passed by the trial court, therefore, no interference is called for. 6. Heard learned counsel for the parties and perused the impugned order. 7. 5. Learned Public Prosecutor has opposed the criminal misc. petition and argued that there is no illegality in the impugned order passed by the trial court, therefore, no interference is called for. 6. Heard learned counsel for the parties and perused the impugned order. 7. This Court is of the opinion that even though, the petitioner is ordered to be released on bail by this Court while exercising powers under section 439 Cr.P.C., there is no bar in ordering for release of the petitioner if a case is made out for releasing him under the provisions of subsection (2) of section 167 Cr.P.C. The power of the High Court under section 439 Cr.P.C. is discretionary power and exercise of such power is quite different from the mandate envisaged under the mandatory provisions of sub-section (2) of section 167 Cr.P.C. 8. In Ram Singh Batra v. State (supra), Delhi High Court has observed as under: "(6) Even as per the statement of the complainant in the application itself as indicated above, the does not appear to be a clear cut case where one can say with the Court while granting the bail order on 21.5.2004 was unaware of the rejection of bail granted by this Court on 12.5.2004. Be that as it may, rejection of an application for bail which has been moved under Section 439 is quite different from releasing the petitioner in terms of the statutory provisions under Section 167 (2). While Section 439 empowers the High Court and the Sessions Court to grant or refuse bail, those powers are discretionary powers. Section 167 (2) does not allow for any discretion. This is a mandatory provision and whether bail has been granted or rejected under Section 439, if a case is made out for releasing the petitioner under Section 167 (2), then such person has to be released irrespective of the order passed under Section 439." 9. Resultantly, this criminal misc. petition is allowed. The impugned order dated 16.06.2014 passed by the Additional Chief Metropolitan Magistrate No.4, Jodhpur Metropolitan is quashed with a direction to the trial court to consider the application of the petitioner preferred under sub-section (2) of section 167 Cr.P.C. afresh in the light of the above observations and decide the same on the day, the certified copy of this order is produced.Stay petition stands disposed of.Petition allowed. *******